AG2009/1383, Transcript of Proceedings [2009] FWATrans 415 (9 July 2009)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 20569-1

SENIOR DEPUTY PRESIDENT RICHARDS

AG2009/1383

cl.16A(1)(b) Sch.8 - Application to vary preserved collective State agreement by person bound

Application by Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees
(AG2009/1383)
Prescare Support Staff Certified Agreement 2005

[AG871019 Print ]]




Brisbane

11.41AM, WEDNESDAY, 24 JUNE 2009

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN BRISBANE

PN1

THE SENIOR DEPUTY PRESIDENT: I am Senior Deputy Richards. I understand I have Ms Cerrato from the LHMU and a Ms Schinnerl of the AWU and Mr Green of Prescare all on the line. Is that correct?

PN2

MR GREEN: That is correct.

PN3

THE SENIOR DEPUTY PRESIDENT: Well, good morning to you and Ms Cerrato and Ms Schinnerl would understand that my manner of approach, Mr Green, is to work through the provisions of clause A of schedule 8 of the Workplace Relations Act in relation to this application which is indeed an application for purposes of varying and preserving the collective state agreement referred to as the - sorry, I am referring to the wrong one. To preserve the collective state agreement identified as the Prescare Support Staff Certified Agreement 2005. Now, the first issue is I just want to first of all determine that I have a true and correct word version of the agreement, of the consolidated agreement, and the schedule of variation.

PN4

I understand from my associate only as I've just come in, Ms Cerrato, you've just recently emailed a version of that through to me. Is that right?

PN5

MS CERRATO: Yes. They have been emailed through this morning.

PN6

THE SENIOR DEPUTY PRESIDENT: Good. Thank you for that. I need to also identify as to the basis of the application by way of consistency with the rules of the Commission. This is an application to both vary and extend the preserved collective state that I sighted earlier. The application however is solely rule 61B through form R55B that is vary the preserved collective state agreement but in my view rule 6 applies such that there is no requirement to comply with rule 61A or utilise form R55A as it is evident that the intent of the parties is also to vary the - is not only to vary but to also extend the nominal expiry date of the agreement.

PN7

Clause 16A subsection (1) of schedule 8 of the Workplace Relations Act requires me to determine whether or not the application is by a person bound by the preserved collective state agreement. In this case it is. The application was by the LHMU Queensland branch which is a party to the agreement. Clause A(2A) and clause A subclause 4 requires me to determine whether or not all the parties that are bound by the preserved collective state agreement genuinely agree to the variations along with the extension of the nominal expiry date of the agreement. As I understand matters from the materials before me including the statutory declaration of Mr Green that are some 11 sites that the employer operates across Queensland to which the agreement applies.

PN8

There are some 336 employees at the time, at the relevant time at least employed at those sites under this agreement. There is material before me that demonstrates that various ballot procedural material including a summary of the terms of the variations as sought was provided to the employees prior to a ballot being conducted. The ballot was conducted as I understand it from the statutory declaration before me some 245 employees responded to the ballot and out of those 245 employees 229 of those employees supported or endorsed the variation and the extension of the nominal expiry date of the agreement. That is all deposed at paragraph 6 in effect in Mr Green's statutory declaration. All I need to know is from Ms Schinnerl from the AWU and Ms Cerrato from the LHMU are you able to tell me whether you agree with those facts as deposed in Mr Green's statutory declaration.

PN9

MS CERRATO: Yes, your Honour, on behalf of the AWU I can not see any problems with what as deposed by Mr Green and indeed that reflects what my organiser has told me regarding the vote.

PN10

MS SCHINNERL: Thank you, Senior Deputy President, yes, that's the case for LHMU as well. We are also in agreement with the matters deposed in the statutory declaration. Thank you.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 16A2b (i) and (ii) requires me to determine whether or not the parties have since the introduction day that being 13 February 2008 organised or threatened to organise or engage in industrial action or otherwise made an application under section 451 of the Act. Paragraph 8 of Mr - I should say I have three statements from each of the parties. I have a written statement from Prescare dated 4 June 2009. A written statement from the LHMU Queensland dated 5 June 2009 and a written statement from the AWU Queensland dated 5 June 2009 all attesting that there has been no such conduct. I also avert to paragraph 8 of Mr Green's statutory declaration that also deposes in respect to the matters that there has been compliance with the Act in the respects of those requirements of schedule 8.

PN12

Clause 16A2c (i) and (ii) and clause 16A5 and clause 16A6a requires me to determine whether the variation as proposed to the collective agreement would result on balance in a reduction in the overall terms and conditions the employee is bound by that agreement. Well, it appears to me that examining the variation schedule that has been provided with the application along with paragraph 7 of Mr Green's statutory declaration that the central provisions of the varied agreement appear to be the provision of a retrospective four per cent wage increase which appears to take effect from 27 October of last year, 2008, which will become available upon the making of the order in relation to this application. And then, as I understand it, on each of the anniversary dates thereof up until and inclusive of 2010 there will be two further instalments of the same percentage increase in wages.

PN13

The variation schedule in the statutory declaration also inform me that there are a number of a range of allowances that are also increased as a consequence of the variations as sought and there is also an enhancement amongst other things of the personal and carer's leave entitlement. Ms Cerrato and Ms Schinnerl do you all agree that given those circumstances that the variation of the agreement as proposed would not result in balance or reduction in the overall terms and conditions of employment.

PN14

MS CERRATO: Yes, your Honour.

PN15

MS SCHINNERL: Yes, your Honour.

PN16

THE SENIOR DEPUTY PRESIDENT: Thank you to both of you. Finally, clause 16A3 of schedule 8 requires me to determine whether the proposed amened nominal expiry date of the preserved collective state agreement is more than three years after the date on which the order that I might make is made. It is evident from section 1.3 of the proposed to varied agreement that the variation as sought is a three years extension or variation of the agreement, sorry, extension of the nominal expiry date from the date of that order that might issue therefore the proposed varied nominal expiry date is compliant with the requirements of schedule 8. That brings to a conclusion the statutory requirements of schedule 8 of the Act. Are there any other matters that the parties to the agreement want to bring to my attention?

PN17

MS CERRATO: No, your Honour.

PN18

MS SCHINNERL: No, thank you, your Honour.

PN19

THE SENIOR DEPUTY PRESIDENT: Mr Green?

PN20

MR GREEN: No, senior deputy president.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you very much everyone. Look on that basis the orders will issue effective of this decision in transcript of today's date varying and extending - varying the preserved collective state agreement and extending its nominal expiry date in the terms as discussed. Thank you very much everyone. We are adjourned.

PN22

MR GREEN: Thank you, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: Thank you.

<ADJOURNED INDEFINITELY [11.49AM]